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Northwest OH Legal Blog

Tuesday, April 22, 2014

Know Your Rights!

When it comes to discipline in the workplace, one of the most important rights that a Union member can exercise is their “Weingarten right.”  Named after the Supreme Court case that established the right, the Weingarten right ensures that a Union employee can have Union representation during any investigatory interview that may result in discipline.  This right can be exercised either before the interview has begun or at any time during the interview. 

To exercise the right, the interview must be “investigatory.”  Weingarten does not attach if the employer calls you into a meeting simply to tell you that you are being disciplined.  Weingarten does attach if you are being asked to explain or defend your conduct or are being compelled to answer questions or give evidence.  In essence, anytime a reasonable person could believe that the meeting may lead to future disciplinary action or questions are related to pending disciplinary action you have the right to Union representation. Importantly, you must request Union representation!  The employer has no obligation to provide you with Union representation if you don’t request it, nor does the employer have to tell you that you have a right to Union representation.

Once you have invoked Weingarten and asked for Union representation, the Employer has three choices. 1) The employer can grant the request and wait for the Union representative to arrive and have a chance to consult with you prior to continuing the interview; 2) the employer can deny the request and end the interview immediately; or 3) give the employee a choice of either having the interview without representation or ending the interview.  If the employer chooses option three the employee cannot be punished for choosing to end the interview.  If the employer refuses the request for representation and attempts to continue the interview it is committing an unfair labor practice.  The employee can refuse to answer any questions that the employer asks after making such a refusal but may be required to sit there until the employer terminates the interview.  Any information that is gathered after an employee’s Weingarten rights have been violated will be excluded from evidence in any disciplinary action.

It is important to remember that you have a right to Union representation during any investigation.  The Union representative can help to determine what the subject of the investigation is, consult with you before the questioning begins, advise you on how to answer the questions, and provide additional information to the employer at the conclusion of the interview. Having a Union representative present helps to ensure that you are treated fairly and aids the Union in its fact gathering mission if you would face disciplinary action later on.  

As a general rule, anytime you are having discussions with your employer request a Union representative!  Even if the Weingarten rule does not apply most employers will allow you to have a Union representative present if you ask for one.  When approached by an employer, start any interview or meeting with the following statement, “If this discussion could in any way lead to my being disciplined or discharged I request that my Union representative be present at the meeting.  Without representation, I choose not to answer any questions.”

If you think your employer has violated your Weingarten rights, contact your Union immediately!

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With offices in Toledo and Lima, OH Allotta Farley Co., L.P.A. serves clients throughout northwest OH with various legal matters. Areas of service include Allen County, Ashland County, Auglaize County, Crawford County, Defiance County, Erie County, Fulton County, Hancock County, Hardin County, Henry County, Huron County, Lucas County, Marion County, Mercer County, Morrow County, Ottawa County, Paulding County, Putnam County, Richland County, Sandusky County, Seneca County, Van Wert County, Williams County, Wood County, Wyandot County.

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